TRANSACTIONS AND COMMUNICATIONS WITH PERSONS OTHER THAN CLIENTS Flashcards
What is the duty of truthfulness to third persons?
Rule (ABA Model Rule 4.1): A lawyer must not knowingly:
- Make a false statement of material fact or law to a third person,
- Fail to disclose a material fact when necessary to avoid assisting a criminal or fraudulent act by a client (unless disclosure is prohibited by confidentiality rules).
Misrepresentation includes:
- Affirming a client’s false statement,
- Making misleading statements by omission,
- Providing only half-truths or failing to clarify a mistaken impression.
Example: If a lawyer is negotiating a settlement and knows the other party misunderstands a critical fact, the lawyer may be obligated to correct the misimpression depending on the context.
When must a lawyer disclose material facts to third parties?
Rule (Rule 4.1(b)): If a lawyer’s silence would make them complicit in a client’s fraud or crime, they must disclose the material fact—unless the information is protected by Rule 1.6 (confidentiality).
If disclosure is barred, and continued assistance would violate the law or ethics rules, the lawyer must withdraw.
Example: A lawyer cannot remain silent if the client is submitting false financials to a bank as part of a loan transaction.
What is “puffery” in negotiation, and is it permitted?
Rule: Statements of opinion, predictions about future events, or subjective valuations (e.g., “This case is worth $1 million”) are not material facts, so they are permitted under Rule 4.1.
Caution: False statements about objective facts (e.g., “We have a key witness” when no such witness exists) are not protected.
Example: A lawyer exaggerating the strength of their case is permitted, but lying about the existence of insurance coverage is not.
What is the rule on communicating with represented persons?
Rule (ABA Model Rule 4.2): A lawyer must not communicate about the subject of the representation with someone they know is represented by counsel unless:
- The other lawyer gives consent, or
- The communication is authorized by law or a court order.
Even if the client initiates the contact, the lawyer must redirect them to their attorney.
Example: A lawyer cannot call the opposing party in a lawsuit directly to negotiate a deal.
How does this rule apply to organizations?
Rule: A lawyer may not communicate without counsel’s consent with the following current employees of an organization:
- Those who supervise, direct, or regularly consult with the organization’s lawyer,
- Those whose acts or omissions may be imputed to the organization,
- Those with authority to obligate the organization with respect to the matter at hand.
Example: Contacting the CEO or general counsel’s assistant without the organization’s lawyer’s permission would violate the rule.
Can lawyers talk to former employees of represented organizations?
Rule: Yes, unless the communication seeks privileged information or violates the former employee’s duty of confidentiality.
Caution: The lawyer should make clear that they do not represent the former employee.
Example: It is improper to ask a former HR manager about what legal advice the company’s attorney gave.
What are exceptions to the no-contact rule with represented persons?
Lawyers may communicate with represented parties:
- When authorized by law (e.g., investigative activities by prosecutors),
- When communicating about unrelated matters,
- When the opposing lawyer consents,
- When advising their own client to speak directly with the represented party (but the lawyer cannot script or supervise that conversation),
- When interviewing fact witnesses (as long as the witness is not represented or prohibited).
What is the ethics rule on using “Reply All” in emails?
Rule: When opposing counsel includes their client on an email, this may be seen as implied consent to a “Reply All” response including the client. [ABA Formal Ethics Opinion 503 (2022)]
Best Practice: Avoid copying clients on emails with opposing counsel. Instead, forward the message separately to avoid confusion.
Can a pro se lawyer contact a represented party?
Rule: No. A lawyer representing themselves must still comply with all professional conduct rules—including the prohibition on direct contact with a represented party. [ABA Formal Ethics Opinion 502 (2022)]
Example: A lawyer suing for unpaid fees cannot contact the former client directly if the client is represented.
What are the rules when dealing with unrepresented persons?
Rule (ABA Model Rule 4.3):
- A lawyer must not mislead the person about the lawyer’s role.
- If the unrepresented person believes the lawyer is neutral or on their side, the lawyer must clarify.
- The lawyer must not provide legal advice except to say: “You should get a lawyer.”
Example: A lawyer drafting a release for their client cannot tell the unrepresented opposing party that signing it is in their best interest.
Can lawyers negotiate with unrepresented persons?
Rule: Yes, but with caution. Lawyers may:
- Communicate their client’s position,
- Explain legal terms or procedures,
- Clarify facts, BUT they cannot:
- Provide advice on whether to accept a deal,
- Suggest the terms are fair unless truly acting as a neutral mediator.
What is prohibited conduct toward third persons?
Rule (ABA Model Rule 4.4(a)): A lawyer may not:
- Use means that serve no substantial purpose other than to embarrass, delay, or burden a third person,
- Use methods of obtaining evidence that violate another person’s legal rights.
Example: Sending aggressive subpoenas to harass a former spouse of a client violates Rule 4.4.
an a lawyer misuse subpoena power?
Rule: A lawyer may not use subpoenas or discovery to:
- Harass,
- Intimidate,
- Gather information beyond the authorized scope,
- Bypass required notice to opposing parties or third parties.
Example: Secretly subpoenaing a third party for privileged records is unethical.
Can a lawyer use law enforcement to pressure witnesses?
Rule: No. A lawyer must not manipulate or exploit police or prosecutorial authority to pressure a witness to give favorable testimony or to refrain from testifying.
Example: Requesting police intervention solely to make a witness fearful is a violation.
What must a lawyer do if they receive a document by mistake?
Rule (ABA Model Rule 4.4(b)): If a lawyer knows or reasonably should know that a document or electronically stored information was sent inadvertently, they must promptly notify the sender.
- This rule applies regardless of the format (email, fax, hard copy, etc.).
- Lawyers must follow state law or court rules on whether they can read, use, or must return the material.
Example: If opposing counsel accidentally sends privileged client emails, you must inform them but may not have to delete unless required by local rule.
